What I Plan to Tell the US Civil Rights Commission About Antisemitism on Campus and the Government Response Thus Far
Tomorrow I will testify at the U.S. Civil Rights Commission's briefing on Antisemitism on America's College and University Campuses: Current Conditions and the Federal Response. I am one of six panelists during the first session, which runs from 10:15 am - 11:25 am. We have been instructed to speak for no more than 7 minutes in our opening statements, followed by questions from the commissioners. All panels will be live-streamed via the Commission's YouTube channel.
Panelists were asked to submit written testimony, which I have done and which I reproduce (minus the footnotes) below. Readers who are interested in a version with footnotes can find my full written statement, as well those of the other panelists, by clicking on "panelist materials". Having done so myself, I was struck by the general agreement among the four law professors on the panel (Ben Eidelson of Harvard, Genevieve Lakier of the University of Chicago, Eugene Volokh of the Hoover Institution, and myself), although we each emphasized different points. The law professors' statements provide an interesting contrast with the statements of the other two panelists. Depending on how the in-person hearing goes, I may follow up in a subsequent blog post.
Meanwhile, here's my written testimony minus the footnotes. (My oral testimony will be even shorter.)
Distinguished commissioners:
Thank you for the opportunity to address the federal response to antisemitic incidents on American college and university campuses since October 7, 2023. I was asked to speak because of my expertise as a legal scholar, and I shall share what insight that expertise affords me momentarily, but with your indulgence I begin with some personal observations.
Growing up as a Jewish American in the New York metropolitan area in the 1960s and 1970s, I was fortunate to have little direct experience of antisemitism, although I learned about the phenomenon from older family members and as part of my Jewish education. I married a woman who was the daughter of immigrant Holocaust survivors. The man who would have been my father-in-law had he lived longer, Ben Zion Colb, was a great hero. As documented in an exhibit at the Holocaust Museum less than a mile from where this commission sits, at great personal risk he operated a network that rescued over a thousand Jews, most of them children, from Nazi-occupied lands. I learned about his heroism and much more from my late wife, Sherry Colb, from my brother-in-law, Dr. A. Mark Colb, and especially from my late mother-in-law, Clara Colb, who on multiple occasions narrowly escaped being sent to a death camp. Most of the other members of Ben Zion’s and Clara’s families were not so lucky. Their stories are etched in my memory, almost as though I had experienced them directly.
Unfortunately, antisemitism is not simply a memory. In recent years, there have been genuine and genuinely disturbing incidents of antisemitism throughout the world and our country, including on college and university campuses. That includes each of the universities I know best: Harvard University, from which I received both my undergraduate and law degrees; Columbia University, where I was a faculty member for thirteen years; and Cornell University, where I have been a faculty member for over seventeen years. Just three weeks after the October 7 Hamas terrorist attack, a Cornell student threatened to bomb a Jewish residential center and to rape and kill Jews. Fortunately, the threats were not carried out, but they were sufficient to spread a new sense of unease.
I am not here as a fact witness, however. I have related my own background only to underscore that I take antisemitism very seriously, especially when it occurs on the campus of a college or university.
Turning to my views as a legal scholar, I shall make two main points: first, there are difficult questions about which the Department of Education during the Biden administration provided largely unhelpful guidance; second, the response of various agencies and actors under the Trump administration does not raise difficult questions because it is simply unlawful, unconstitutional, and destructive.
Difficult Questions
There are some genuinely difficult questions about how campus administrators can and should weigh the value of free speech for faculty, students, staff, and community against the important goals of creating and fostering an environment in which everyone is welcome regardless of race, religion, national origin, sex, sexual orientation, gender expression, disability, or other characteristics that can be the basis for invidious discrimination. These issues can be difficult both in principle and in application.
At the level of principle, colleges and universities must navigate between the demands of the First Amendment and federal civil rights statutes such as Titles VI and IX, but even were there no governing law, campus administrators would face difficult tradeoffs because America’s colleges and universities rightly value both liberty and equality.
Moreover, however one decides to weigh liberty versus equality in the abstract, there will be concrete practical challenges. For example, in principle there is general agreement both that not all criticism of Israel or Israeli policy constitutes antisemitism and that, nonetheless, some people who protest Israel or Israeli policy sometimes use antisemitic language or engage in antisemitic acts. However, putting aside actual physical acts motivated by antisemitism—which ought never to be tolerated—there is considerable disagreement over where the line is between, on the one hand, protest that is merely opposed to Israeli policy and, on the other hand, antisemitic language that contributes to a discriminatorily hostile environment. Some protesters who use language such as “from the river to the sea, Palestine will be free” mean only that they strongly object to Israeli actions, while many Jewish and Israeli observers hear in those words a call for genocide. Whether campus administrators or the law should adopt a speaker’s perspective, a listener’s perspective, an ostensibly neutral perspective, or some other perspective is an unsettled, contested, and difficult question.
So too, there have been accusations of double standards in multiple directions. If college and university administrators fail to strictly enforce content-neutral rules regarding such matters as the use of buildings, outdoor space, and amplified sound against pro-Palestinian protesters, is that favoritism towards their viewpoint and thus an inadequate response to whatever antisemitic messages might either clearly or potentially be understood to have come from such protesters? Or is the right comparator the response to similar tactics and rule breaking during earlier mass campus protests that were also tolerated—such as those against the Vietnam War, South African apartheid, and perceived inaction on climate change?
Federal law constrains how colleges and universities combat illicit discrimination and protects free speech. Title VI forbids recipients of federal funds from discrimination based on race, which has been sensibly construed to include antisemitic discrimination insofar as being Jewish is a racial or ethnic identity and not only a religion. As implemented, federal law also obligates covered institutions to take effective measures to prevent unlawful discrimination and remedy it when it occurs.
Federal statutory civil rights law does not stand alone, however. The First Amendment is also relevant. The First Amendment applies of its own force to public colleges and universities. It also constrains the application of Title VI to private colleges and universities. As a unanimous Supreme Court reaffirmed less than two years ago, government coercion of private actors to restrict the speech of third parties violates the First Amendment if the same restrictions would be unconstitutional when imposed by the government directly.
Congress has granted primary responsibility for ensuring that educational institutions that receive federal funds comply with their civil rights obligations to the Department of Education. Unfortunately, during the most recent period of controversial campus protests, the Department provided little help. For example, in a collection of statements issued in June 2024, the Biden Department of Education Office of Civil Rights issued this Delphic declaration: “While the University may not discipline speakers for protected speech, the University retains a Title VI legal obligation to take other steps as necessary to ensure that no hostile environment based on shared ancestry persists.”
The suggestion seems to be that some statements by students can be instances of protected free speech but also, either on their own or when aggregated with other similar statements or conduct, contribute to a hostile environment for other students in violation of Title VI.
That approach placed colleges and universities in an extremely awkward position. Ordinarily, the obligation to prevent or remediate a hostile environment can be satisfied through means such as individual discipline and general training. Yet the Biden Department of Education itself acknowledged that discipline is not available for protected speech. Thus, training cannot truthfully instruct students that they will face any remedial consequences for protected speech. Training usually consists of dos and don’ts. Given the Department’s acknowledgment that speech can be both protected and also a contributor to a hostile environment, any training would need to consist of dos and mere please-don’ts.
Accordingly, during the last presidential administration, campus administrators were mostly left guessing whether they would end up on the wrong side of Title VI or the First Amendment. Still, at least they knew that whatever discipline might come their way would itself be within the bounds of law. That changed with the second Trump administration.
The Trump Administration’s Plainly Unlawful Response
Two weeks into President Trump’s current term in office, the Department of Justice announced the creation of a multi-agency Task Force to Combat Anti-Semitism. Over the last year, the Task Force and others within the Trump administration have violated federal law and the Constitution in pursuing their mission. Actions with respect to Columbia and Harvard illustrate the pattern of lawlessness.
Barely a month after its creation, the Task Force issued what it called an “initial” cancellation of $400 million worth of federal grants to and contracts with Columbia University. How did the Task Force move with such alacrity? It did so by dispensing with critical procedures that Congress designated to ensure that the hammer of a federal funding cutoff would be used only very sparingly and as a last resort.
Federal law requires program-by-program evaluation of alleged civil rights violations by federally grant-funded entities, further requires that a funding recipient threatened with a cutoff be given “an opportunity for hearing,” and limits any funding cutoff to “to the particular program, or part thereof, in which . . . noncompliance has been . . . found.” Moreover, no funding cutoff can occur if compliance can be achieved going forward “by voluntary means.” The statute also requires, as a prerequisite to a funding cutoff, that whatever agency or agencies are cutting off funds forward a report explaining why to the relevant committees in Congress, and even then, delays any funding cutoff for at least 30 days after the filing of the report. The Task Force has followed none of those legal rules.
Despite the clear illegality of the funding cancellations but understandably wary of an administration led by a president with a penchant for revenge, Columbia entered negotiations with the administration, culminating in an unprecedented settlement agreement that, among other things, requires the university to pay the federal government $200 million. That was part of the settlement even though, with one exception, none of the government’s claims against Columbia could have resulted in financial liability. The lone exception is a provision of the False Claims Act that allows for a recovery of a maximum of $10,000 plus three times the monetary value of damage sustained by the federal government. It is difficult to see how the federal government itself suffered any damage from Columbia’s alleged misdeeds, much less over $66 million worth. The most logical inference under the circumstances is that in this, as in its actions with respect to other universities, the administration’s goal was to secure a big win, as reflected in dollars paid as tribute.
The Columbia settlement also contains terms that reach deep into the heart of university administration. As Columbia Law Professor David Pozen has observed, “the agreement gives legal form to an extortion scheme . . . that defies . . . the First Amendment.”
It is plain from the Trump administration’s demands of other universities that it aims to control their internal workings to an extraordinary degree. The most dramatic example of the administration’s vision is its April 11, 2025 letter to Harvard President Alan Garber, which demanded federal control of the private university’s admissions, hiring, governance, and more.
With respect to Harvard, as with respect to Columbia and every other college or university that has fallen within the Trump administration’s cross-hairs, the funding freezes and cancellations that preceded the demands were in violation of federal statutory requirements. In addition, as a federal district court ruled, the Trump administration’s actions against Harvard violated the First Amendment in three respects: they retaliated for Harvard’s resistance to unlawful demands; they impermissibly conditioned Harvard’s eligibility for federal funding on government control of free expression by and at Harvard; and they coerced Harvard to restrict the constitutionally protected speech of its students and faculty.
Especially given the wide-ranging scope of the conditions that the Trump administration has sought to impose on American universities, what the judge wrote about Harvard is broadly applicable to the administration’s overall campaign: “although combatting antisemitism is indisputably an important and worthy objective, nothing . . . supports [the administration’s] contention that they were primarily or even substantially motivated by that goal (or that cutting funding to Harvard bore any relationship to achieving that aim).”
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I would like to close with another quotation, this one from the Supreme Court’s 1957 plurality opinion in Sweezy v. New Hampshire, and in response to McCarthyite censorship that finds disturbing echoes in our current moment:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
I cannot say with complete confidence that the stagnation and death of our civilization are the goals of the Trump administration’s ostensible response to antisemitism on American college campuses. I can say that, if unchecked, they could well be its consequences.
-- Michael C. Dorf